Thursday, March 13, 2014

Ex Parte Communications

Perhaps you have noticed that the legal profession really loves Latin phrases.  Good thing I took two years of Latin at Arlington-Green Isle High School!

Ex parte is one of those Latin phrases often used in law.  It is an important phrase, especially for judges.  It translates as “from one party.”  As it applies to judges, it is a rule that says in  litigation one side cannot give the judge information that is not provided to the other side. 

Our system of Justice is the adversary system.  Each side presents its evidence, makes its arguments, and the theory is that the judge is able to sort out the inconsistencies and make the correct decision.  There are, of course, numerous times when things can go wrong, but, by and large, our system has worked well for a couple hundred years or more.

If, however, one side is able to give the judge information that the other side does not know, and to which it cannot reply, that would be an unfair advantage.  That is why ex parte communications with a judge are strictly prohibited.

If an attorney engages in ex parte communications, he or she can be disciplined by the Lawyers Professional Responsibility Board.  If a judge engages in ex parte communications, he or she can be disciplined by the Board of Judicial Standards.  These are not fun encounters and judges and lawyers alike and are avoided as much as possible. 

Sometimes, judges receive information from people not directly involved in the case, but know something about it from one of the parties.  These are very difficult situations for judges, as these folks are just doing what they think is right.  They think they are helping their friend so the judge will have the full picture.  (This most often happens in family court matters, especially custody or parenting time disputes.)

The result of this type of communication , however, is that the judge at the least has to disclose the communication to both sides, and depending on the information submitted, the judge may have to disqualify himself from any further consideration on the case.  When that happens, another judge steps in and has to get up to speed on what has happened before in the case.  It is not a good use of public resources.  But it is sometime necessary to ensure that both parties have the full benefit of a fair trial, by an impartial judge, not improperly in possession of ex parte information.

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Next week:  Excuses, Excuses